Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation

Volume 26 Issue 2 Article 8

1981

Constitutional Law - Privacy - Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation

Kathleen D. Yesenko

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Recommended Citation Kathleen D. Yesenko, Constitutional Law - Privacy - Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation, 26 Vill. L. Rev. 499 (1981). Available at: https://digitalcommons.law.villanova.edu/vlr/vol26/iss2/8

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Recent Developments

CONSTITUTIONAL LAW-PRIVACY-INVASION OF PRIVACY JUSTIFIED WHERE HOSPITAL RECORDS ARE SOUGHT FOR GRAND JURY INVESTIGATION. In re June 1979 Allegheny County Investigating Grand Jury (Pa. 1980)

To aid in its investigation into the use and misuse of county facilities, funds, personnel, and equipment, the Allegheny County Investigating Grand Jury 1 issued a subpoena duces tecum to West Allegheny Hospital. 2 The subpoena ordered the hospital administrator to produce tissue reports prepared for the hospital by Pittsburgh Pathology and Toxicology Laboratory, Inc. (P.P. & T.) 3 in order to determine whether any of P.P. & T.'s testing was performed at county

1. In re June 1979 Allegheny County Investigating Grand Jury, - Pa. -, -, 415 A.2d 73, 75 (1980). The grand jury was impanelled pursuant to the Pennsylvania Investigating Grand Jury Act. Id. at - n.1, 415 A.2d at 75 n.l. See 19 PA. CONS. STAT. ANN. §§ 265-278 (Purdon Supp. 1980-1981). In Pennsylvania, an investigating grand jury is convened where it is deemed "necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury." Id. § 267(b). Once the convening of a grand jury is deemed necessary, its power includes, but is not limited to, the power of subpoena, the power to obtain initiation of civil and criminal contempt proceedings, and the power to issue a presentment with regard to any person who appears to have com- mitted a criminal offense. Id. § 271. The grand jury system generally offers the protection that persons involved in grand jury proceedings, with only limnited exceptions, "shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret." Id. § 272(b). The grand jury is subject as well to the continuous supervision of a judge. Id. §§ 266-275. 2. - Pa. at -, 415 A.2d at 75. The subpoena was issued to West Alle- gheny Hospital and served upon its administrator, Dr. Mario J. Lanni. Id. 3. Id. Prior to the commencement of the investigation, West Allegheny Hospital had sent tissue samples of various patients to P.P. & T. Id. Results of testing on the samples were provided by P.P. & T. in reports which included the patient's name and address, an indication of the type of tissue submitted, a list of tests performed, and medical conclusions possible from the test results. Id. P.P. & T. claimed that it did not possess its own copies of the reports. Id. at - n.2, 415 A.2d at 75 n.2. At an earlier stage in the investigation, pursuant to another subpoena, the validity of which was not contested, the hospital administrator appeared before the grand jury and delivered correspondence, cancelled checks, invoices and itemized billings relating to these tissue samples. Id. at -, 415 A.2d at 75. From this material, the grand jury determined the names and addresses of patients whose tissue samples were tested by P.P. & T., the type of tissue submitted, and the date the sample arrived at P.P. & T.'s lab. Id.

(499)

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facilities. 4 The hospital administrator informed the grand jury legal advisers that the hospital would not comply with the subpoena. 5 After hearing testimony and argument on the hospital's motion to quash the subpoena,6 the supervising judge denied the motion and ordered compliance. 7 The hospital administrator refused to comply with the subpoena, arguing that the records sought were confidential and claiming that their disclosure would invade the patients' right of privacy.8 He was then adjudged to be in civil contempt of court.9 On appeal, the Supreme Court of Pennsylvania affirmed, 10 holding that although disclosure of medical data could, under certain circumstances, threaten a patient's constitutional right of privacy, this right is adequately protected by the terms of the Investigating Grand Jury Act. In re June 1979 Allegheny County Investigating Grand Jury, - Pa. -, 415 A.2d 73 (1980). While the Constitution of the United States does not specifically mention a right of privacy," the United States Supreme Court has recognized that "a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution." 12 This

4. Id. 5. Id. at -, 415 A.2d at 75-76. Initially, counsel for the hospital asserted that compliance with the subpoena would breach hospital confidentiality, and would be unreasonably time-consuming and expensive for the hospital. Id. at -, 415 A.2d at 76. Counsel for the hospital requested disclosure of the relevance of the subpoenaed materials to the investigation and the Commonwealth responded by submitting an affidavit in order to make a preliminary showing that the information sought was relevant to the investigation. Id. at -, -, 415 A.2d at 76, 78. After reviewing the Commonwealth's affidavit, counsel for the hospital moved to quash the subpoena. Id. at -, 415 A.2d at 76. For the procedures to be followed in determining the relevance of information sought to be subpoenaed, see Appeal of Hawthorne, - Pa. -, -, 412 A.2d 556, 560-61 (1980). See also In re Grand Jury Proceedings, 486 F.2d 85, 93 (3d Cir. 1973). 6. - Pa. at -, 415 A.2d at 76. 7. Id. at -, 415 A.2d at 76. 8. Id. The hospital administrator also claimed that the information was protected by the physician-patient privilege. Id. For a discussion of this privilege, see notes 58-61 and accompanying text infra. 9. - Pa. at -, 415 A.2d at 76. 10. Id. at -, 415 A.2d at 77-78. Chief Justice Eagen, writing for the majority, was joined by Justices O'Brien and Kauffman. Justices Roberts and Nix filed concurring opinions. Justices Larsen and Flaherty filed dissenting opinions. 11. See Roe v. Wade, 410 U.S. 113, 152 (1973). The protection of a person's general right to privacy "is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S. 347, 350-51 (1967) (footnote omitted). State tort law recognizes four distinct privacy invasions: intrusion upon individual seclusion, representa- tion of an individual in a false light, public disclosure of private facts, and appropriation of another's name or likeness for commercial purposes. Prosser, Privacy, 48 CALIF. L. REV. 383, 389-407 (1960). 12. Roe v. Wade, 410 U.S. 113, 152 (1973). The principle of privacy as a constitutional right was first suggested in a law review article by Samuel Warren

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constitutional right of privacy 13 has been held to include protection against the disclosure of personal information.14 Such protection, however, is not absolute and may be overcome by the assertion of various state interests.' 5 Although the constitutional protection afforded per-

and Louis Brandeis. Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). See Warren & Brandeis, The Right to Privacy, 4 HARv. L. REv. 193 (1890). In that article, the authors articulated a "general right of the individual to be let alone." Id. at 205. Supreme Court recognition of a constitutional right of personal privacy dates perhaps as far back as 1891. Roe v. Wade, 410 U.S. at 152, citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). See also Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 50 S.E. 68, 69 (1905) (right of privacy derived from natural law and guaranteed by United States and Georgia Constitutions). In Roe v. Wade, the Supreme Court, examining the interests which have been determined to be encompassed by the right of privacy, noted that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy ... [and] that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. 410 U.S. at 152-53 (citations omitted). Protection of these interests has been found to be rooted in various constitutional provisions. The right to satisfy one's intellectual and emotional needs in the privacy of one's own home, for example, is protected by the first amendment. Stanley v. Georgia, 394 U.S. 557, 564-65 (1969). The right to educate one's children as one pleases is protected by the first and fourteenth amendments. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Freedom from governmental intrusion has been protected by the fourth and fifth amendments. Terry v. Ohio, 392 U.S. 1, 8-9 (1968); Katz v. United States, 389 U.S. 347, 350 (1967); Boyd v. United States, 116 U.S. 616, 630 (1886). The right of married couples to use contra- ceptives has been viewed as protected by a penumbra of the first amendment. Griswold v. Connecticut, 381 U.S. at 483. This right has also found protection under the ninth amendment. Id. at 486-87 (Goldberg, J., concurring). Although the right of privacy is constitutionally based, its "final parameters • .. will become a function of the Supreme Court's ability and willingness to 'supervise' the lower judiciary's fragmentary and incomplete development of viable privacy doctrine." Silver, The Future of Constitutional Privacy, 21 ST. Louis L.J. 211, 265 (1977). 13. To the extent that an individual has an adequate remedy at state tort law, the availability of a remedy for violation of the constitutional privacy interests may be more limited. See Comment, Constitutional Law-Right of Privacy-Drug Abuse Control, 24 N.Y.L. SCH. L. REV. 260, 275 (1978). The Supreme Court has not equated a tortious invasion of privacy with a violation of the constitutional right. Paul v. Davis, 424 U.S. 693, 712 (1976) (state tort remedy available for vindication of reputation). 14. See Whalen v. Roe, 429 U.S. 589, 598-99 (1977); notes 17-23 and accompanying text infra. 15. McKenna v. Fargo, 451 F. Supp. 1355, 1381 (D.N.J. 1978), afJ'd mem., 601 F.2d 575 (3d Cir. 1979). Disclosure of personal information has been held to be justified where the asserted state interest - the public's right to know the information sought - is weighed against an individual's limited privacy interest. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 457-58 (1977) (no unconstitutional invasion of President Nixon's privacy by disclosure of presidential materials when weighed against public interest in subjecting materials to archival screening); Plante v. Gonzalez, 575 F.2d 1119, 1134-35 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979) (something more than mere ra-

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sonal information extends to protection of personal medical data, protection against disclosure of medical information may be similarly overcome.' 6 In Whalen v. Roe,17 for example, the Supreme Court was faced with a challenge to a New York statute which required the state health department to maintain computerized records on patients who obtained prescriptions for certain drugs.'8 The Court identified two types of privacy interests which may be implicated in the disclosure of medical information: "the individual interest in avoiding disclosure of personal matters, [and] the interest in independence in making certain kinds of tionality shown by state sunshine law when state interest in deterring corrup- tion of public officials weighed against limited privacy expectations of state senators), Disclosure of information has also been held not to impinge un- constitutionally upon the individual's privacy interests where the societal interest was determined to be more important. Whalen v. Roe, 429 U.S. 589, 598, 600 (1977) (state statute requiring patient-identification does not pose a "grievous threat" to individual privacy interests where requirement is a reasonable exercise of police power); Commonwealth ex rel. Platt v. Platt, 266 Pa. Super. Ct. 276, 289-90, 404 A.2d 410, 417 (1979) (patient's right to privacy in mental condition must give way at an involuntary commitment proceeding to public interest in having that person treated). Although disclosure of information would result in a limited intrusion into an individual's privacy interests, such an intrusion has nonetheless been justified in the context of pretrial discovery where the asserted public interest is in full disclosure and development of facts in a case involving very serious charges. Flora v. Hamilton, 81 F.R.D. 576, 579-80 (M.D.N.C. 1978). 16. See Whalen v. Roe, 429 U.S. 589, 598-600 (1977); notes 17-28 and accompanying text infra. While the Supreme Court has not explicitly adopted a balancing test in order to decide when privacy interests should be overridden, and although the balancing test is more commonly applied to due process claims, Whalen has been interpreted as approving of the use of such a test in invasion of privacy cases. Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979). Whalen has also been interpreted as approving of the use of a "rational basis" test when examining a state regulation in the area of health or safety which may impact a privacy interest. People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431, cert. denied, 444 U.S. 949 (1979). For a discussion of the various state interests asserted in order to overcome constitutional protection of medical data, see notes 17-57 and accompanying text infra. For a discussion of the nature of the patient's privacy expectations in medical records and the protections afforded, see generally Hayes, The Patient's Right of Access to His Hospital and Med- ical Records, 24 MED. TRIAL TECH. Q. 295, 298-305 (1978); Willy, Right to Privacy in Personal Medical Information, 24 MED. TRIAL TECH. Q. 164 (1978); Note, Electronic Data Processing In Private Hospitals: Patient Privacy, Con- fidentiality and Control, 13 SUFFOLK U.L. REv. 1386, 1386-90, 1395-98, 1403-09 (1979). 17. 429 U.S. 589 (1977). 18. Id. at 591. The information was sought to aid New York in its enforcement of laws designed to minimize the misuse of dangerous drugs. Id. at 597-98. The statutory scheme itself was a direct response to legislative studies of drug misuse by pharmacists, doctors, and patients. Id. at 591-92. The New York statute expressly prohibited disclosure of the information collected under it and provided that a willful violation of that provision constituted a crime punishable by up to one year in prison and a $2,000 fine. See id. at 594-95; N.Y. PUB. HEALTH LAw § 12-b(2) (McKinney 1971).

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important decisions." 19 Although the Whalen Court recognized the patients' privacy interest in avoiding disclosure of medical information, the Court nonetheless determined that the state's interest in obtaining patient identification was a reasonable exercise of the state's police power.20 The Court found that the safeguards employed by the state 21 sufficiently protected against unauthorized disclosures of information, 22 thus preventing "grievous threat" to any individual privacy interest. In holding that the statutory scheme invaded no constitutionally protected right, the Supreme Court further stressed that requiring disclosure to state officials responsible for the health of the community is not automatically an "impermissible invasion of privacy." 23

19. 429 U.S. at 599-600. The appellees in Whalen included both patients and prescribing doctors who claimed that the mere existence, in a readily available form, of information about patients' drug use raised a genuine concern that the information would become publicly known and would adversely affect their reputations. Id. at 600. The Court noted the appellees' concern that the statute might also impinge upon the doctors' willingness to prescribe, and the patients' willingness to use, the drugs covered by the statute "even when their use is medically indicated." Id. This, the appellees claimed, in- evitably affected "the making of decisions about matters vital to the care of their health" and thus, the statute threatened "to impair both their interest in the nondisclosure of private information and also their interest in making important decisions independently." Id. A third type of privacy interest identified by Whalen is "the right of the individual to be free in his private affairs from government surveillance and intrusion." Id. at 599 n.24, quoting Kurland, The Private I, U. CHI. MAGA- ZINE 7,8 (Autumn 1976). 20. 429 U.S. at 598. New York's "vital interest in controlling the distribu- tion of dangerous drugs" was deemed to be sufficient to support patient- identification because the requirement could: 1) deter potential violators and 2) aid in detecting or investigating specific cases of drug misuse. Id. 21. Id. at 600-01. The Court stated three ways in which public disclosure of patient information may come about: 1) state employees could violate the statute by failing to maintain proper security; 2) the stored information could be offered into evidence in a judicial proceeding involving a patient or a doctor accused of a violation; 3) a doctor, pharmacist, or the patient himself may voluntarily reveal information on a prescription form. Id. at 600. Determin- ing the third possibility to be unrelated to the existence of the computerized patient-identification system, the Court found neither of the other two pos- sibilities to be a proper ground for attacking the statute. Id. at 600-01. The Court found the record unsupportive of any assumption that the statute's security provisions would be improperly administered. Id. at 601. See note 18 supra. The Court further indicated that the patient-identification program would not be invalidated merely because of the "remote possibility" that, in the event information was needed as evidence, judicial supervision could provide "inadequate protection" against unwarranted disclosure. .429 U.S. at 601-02. 22. 429 U.S. at 600. 23. Id. at 602. Noting that the disclosure of information to doctors, hospital personnel, insurance companies, and public health agencies is "essential" even when reflecting unfavorably on the patient, the court apparently equated such disclosure with requiring disclosure of medical information to state employees of the New York Department of Health. Id. The Court also addressed the question of whether the possibility of im- proper disclosure might cause some individuals to decline needed medication.

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In the context of the physician-patient relationship, 24 some courts have interpreted Whalen as permitting disclosure of medical informa- Id. at 602-03. Finding that some 100,000 prescriptions for the regulated drugs were being filled each month, the Court concluded that the statute did not deprive the public of access to drugs and stated: "Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication." Id. at 603. At least one commentator considered Whalen to signal a change in the scope of protection afforded the physician-patient relationship after Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). Comment, supra note 13, at 268. In those cases, according to the commentator, the Court impliedly recognized the importance and nature of the physician-patient relationship, and "raised the expectation that a relatively broad right to privacy concerning matters related generally to medical treatment might emerge." Id. For a discussion of the physician-patient relationship, see notes 58-61 and accompanying text infra. The Whalen Court nevertheless expressed sensitivity to the potential impact that computer technology might have on individuals, stating: We are not unaware of the threat to privacy implicit in the accumula- tion of vast amounts of personal information in computerized data banks or other massive government files. . . . The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. 429 U.S. at 605 (footnote omitted). For a discussion of the implications of computerized patient records, see Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response, 25 BUFFALO L. REV. 37 (1975). 24. For a discussion of the Pennsylvania physician-patient privilege, see notes 58-61 and accompanying text infra. Traditionally, the heart of the physician-patient relationship was the patient's expectation of privacy concerning any personal information regarding medical treatment. Cooper, The Physician's Dilemma: Protection Of The Patient's Right To Privacy, 22 ST. Louis U. L.J. 397, 397-98 (1978). Cooper expressed the view that the objective of protecting communications made during the course of the physician-patient relationship is to assure that the patient will communicate all information needed to diagnose and treat the patient's condition, and indicated that such protection is necessary "to alleviate the patient's fear of possible humiliation, embarrassment or discomfort." Id. at 398. The patient's expectation of privacy is derived in part from the Hippo- cratic Oath, the thrust of which has been incorporated into § 9 of the American Medical Association's Principles of Medical Ethics which provides: A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community. Id. at 398 n.5, quoting JUDICIAL COUNCIL A.M.A., OPINIONS 9c REP. OF THE JUDICIAL COUNCIL 5 (1977). The physician-patient privilege was not recognized at common law and has been heavily criticized today. See, e.g., 8 J. WIGMORE, EVIDENCE § 2285, at 528, § 2380(a), at 832 (McNaughton rev. 1961); Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 YALE L.J. 607, 609-10 (1943); Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 WAYNE L. REv. 175, 180 (1960); Note, De-

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tion where the asserted state interest is sufficient to overcome the patient's interest in privacy. In Schachter v. Whalen,25 for example, the United States Court of Appeals for the Second Circuit held that there is no violation of a patient's constitutional rights where the subpoenaed medical records are crucial to implementing sound state policy and confidentiality of the records is assured by a state statute. 26 The state interest asserted in Schachter was that the information was necessary for an investigation into medical misconduct by state licensed physicians.27 Although distinguishable from Whalen in that the investigation was u~related to the patients themselves, 28 the court determined that the statute had "as much rational basis and underlying public-interest justification" as the statutory scheme in Whalen.29 More- fendant v. Witness, Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges, 20 STAN. L. REV. 935, 972 (1978). Evidence of the benefits claimed to arise from the privilege, according to one court, seem "speculative at best and more realistically non-existent." United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1040 (E.D.N.Y. 1976), aff'd mem., 556 F.2d 556 (2d Cir. 1977). One commentator, in criticizing one of the reasons for the privilege stated that any argument that the privilege is necessary to induce patients to see a physician sounds more like a philosopher's specula- tion on how patients may logically be expected to behave than an observation of the way patients actually behave. Chafee, supra, at 609. Even in those states where doctor-patient privilege statutes exist, numerous exceptions have evolved, rendering the privilege "substantially impotent." Comment, Federal Rules of Evidence and the Law of Privileges, 15 WAYNE L. REV. 1286, 1324 (1969). See also Advisory Committee's Note to Federal Rules of Evidence Proposed Rule 504, 56 F.R.D. 183, 241-42 (1972) (Advisory Com- mittee on the Federal Rules of Evidence has omitted any provision for a general physician-patient privilege, seeing "little if any basis for the privilege"). 25. 581 F.2d 35 (2d Cir. 1978) (per curiam). 26. Id. at 37. Under New York law, the Executive Secretary of the New York State Board for Professional Medical Conduct (Board) is granted subpoena power to investigate licensed physicians for medical misconduct. Id. at 36. See N.Y. Pun. HEALTH LAW § 230(10)(k), (1) (McKinney Supp. 1979-1980). The Board, as part of a professional investigation of Dr. Schachter, subpoenaed the medical records of patients whom he had treated with the drug Laetrile. 581 F.2d at 36. Dr. Schachter and three of his cancer patients sought an injunction to avoid disclosure, claiming that the subpoena invaded the patients' right to privacy and interfered with Dr. Schachter's right to practice his profession. Id. 27. 581 F.2d at 37. 28. Id. The investigation was only related to Dr. Schachter's alleged misconduct. Id. In Whalen, however, the state sought to control misuse of dangerous drugs by doctors and patients. Whalen v. Roe, 429 U.S. at 592-93. 29. 581 F.2d at 37. See also State v. Tsavaris, 382 So. 2d 56 (Fla. Dist. Ct. App. 1980). In Tsavaris, the patient records of a psychiatrist, accused of murdering one of his patients, were subpoenaed by the prosecution. Id. at 59. The court determined that although the names of a number of the psychiatrist's patients appeared on the subpoenaed records, no violation of the constitutional right of privacy of either the psychiatrist or his patients occurred. Id. at 73-74. Relying on Schachter, however, the court required that the subpoenaed information be kept confidential: We are confident that if the State offers evidence at trial disclosing the names of patients, the trial judge will take those steps available to him to preserve confidentiality, including an in camera inquiry to determine relevancy and to determine the extent, if any, to which names of Dr.

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over, the court noted that the coding system involved in the statute in Schachter provided for "substantial procedures to prevent public disclosure of patients' names." 30 The existence of assurances that subpoenaed information would be kept confidential was also a significant factor in E.I. duPont de Nemours & Co. v. Finklea 31 in which a West Virginia federal court recognized that the disclosure of employees' medical records to a federal agency in connection with an investigation of the incidence of cancer among 2 those employees implicated their constitutional right of privacy. Nevertheless, the court held that that right is not abridged where the 88 court is assured that the information will be treated as confidential. Conversely, in Falcon v. Alaska Public Offices Commission,34 the Alaska Supreme Court found the absence of appropriate safeguards to be determinative.85 In Falcon, a physician, whose position on a school board would require him, under a state statute, to disclose all sources of income over 100 dollars,38 brought an action on behalf of his patients

Tsavaris' patients may be deleted from the State's evidence before its admission. Id. at 74. 30. 581 F.2d at 37 (footnote omitted). The Second Circuit thus determined that the statute itself guaranteed confidentiality. Id. See N.Y. PUB. HEALTH LAw § 230(9), (10)(1) (McKinney Supp. 1979-1980). The court found that neither the patients' constitutional rights nor those of the doctor were violated by the statute, and observed that "[i]ndeed, the doctor here has, if anything, even less standing to complain than the doctors in Whalen, for it is an investigation of his fitness that is involved." 581 F.2d at 37. See also note 33 infra. 31. 442 F. Supp. 821 (S.D.W. Va. 1977). 32. Id. at 824. In connection with its investigation of whether there was a high incidence of cancer among duPont employees and whether such incidence was job related, the National Institute for Occupational Safety and Health sought the medical records of 34 named duPont employees. Id. at 822-23. The court did not indicate why the information was constitutionally protected, nor what specific constitutional guarantees protected the information. Id. at 824. 83. Id. at 825-26. The court determined that there was nothing to indicate that the information sought would be used improperly. Id. at 825. More- over, the agency assured the court that it would treat the information as confidential. Id. The court noted that public disclosure of such medical information was prohibited by departmental regulations and specifically ordered the agency to keep the information confidential. Id. See 45 C.F.R. § 5.71(a) (1980). The court relied on language in Whalen, which indicated that the remote possibility that judicial supervision would not adequately protect against unwarranted disclosure should not invalidate the entire program. 442 F. Supp. at 825-26. See also Minnesota Medical Ass'n v. State, - Minn. -, -, 274 N.W.2d 84, 91 (1978) (possibility of accidental disclosure of identities of patients receiving welfare not sufficient to preclude state from requiring such information). 34. 570 P.2d 469 (Alaska 1977). 35. Id. at 480. See notes 36-39 and accompanying text infra. 56. 570 P.2d at 470-71. As a result of Dr. Falcon's school board appoint- ment, he was required to submit a "Conflict of Interest Statement for Public Official or Candidate" to the Alaska Public Offices Commission. Id. at 471. See ALASKA STAT. § 39.50.010-39.50.200 (1962 c Supp. 1980). Dr. Falcon re-

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challenging the statute.37 The Alaska Supreme Court, recognizing that such a requirement would reveal certain types of specialized treatment which patients normally seek to keep private,38 held that the statute could not be applied until it was amended to provide appropriate safeguards to protect the identity of patients.3 9 The court noted, however, that "ordinarily, identification as a patient of a general prac- titioner who also engages in [specialized] functions does not infringe a significant privacy interest." 40 The Pennsylvania Supreme Court first explicitly dealt with the constitutional right of privacy in the case of In re B.41 There, in a proceeding to determine the custody of a juvenile 42 who had been adjudicated a delinquent,4 3 the mother's hospital records of psychiatric treatment were subpoenaed. 44 The hospital refused to produce the records, arguing that disclosure would violate the patient's consti- fused to disclose the names of individual patients and asserted various argu- ments, one of which was the patients' privacy interest. 570 P.2d at 471-74. 37. 570 P.2d at 474-76. 38. Id. at 479-80. Initially, the court noted that, because disclosure of the names of such patients indicates only that these persons have seen a doctor, the disclosure involved a minimal invasion of privacy. Id. at 479. On closer analysis, however, the court concluded that in the case of patients of a doctor with a specialized practice, the disclosure of the patient's identity also reveals the nature of the treatment, which patients would normally seek to keep private. Id. at 480. As examples, the court noted visits to a psychiatrist, psychologist, or a physician who specializes in treating venereal disease. Id. The court determined that, in these situations, the state's interest in preventing conflict of interests by those physicians holding public office was insufficient to outweigh the patient's privacy interest in preventing public disclosure of personal information. Id. 39. Id. 40. Id. The court was of the view that disclosures involving specialized treatment present the exception rather than the general rule. Id. See note 38 supra. 41. 482 Pa. 471, 482-84, 394 A.2d 419, 424-25 (1978). It should be noted that the In re B decision was not a majority opinion. Justice Manderino wrote the opinion of the court and was joined by Justice Larsen. Id. at 474, 394 A.2d at 420. Justice Roberts filed a concurring opinion. Id. at 487, 394 A.2d at 426 (Roberts, J., concurring). Justice O'Brien concurred in the result. Id. at 487, 394 A.2d at 426. Chief Justice Eagen filed a dissenting opinion. Id. at 494, 394 A.2d at 430. (Eagen, C.J., dissenting). Justice Pomeroy filed a dissenting opinion in which Justice Nix joined. Id. at 494-96, 394 A.2d at 430-31 (Pomeroy, J., dissenting). The In re B court noted that, although the general right of privacy had been recognized by Pennsylvania courts, it did not appear that any Pennsyl- vania appellate court decisions had previously dealt explicitly with the constitutional right of privacy. 482 Pa. at 482, 394 A.2d at 424. For a discussion of the general right of privacy, see, e.g., Snider v. Shapp, 45 Pa. Commw. Ct. 337, 347-49, 405 A.2d 602, 608-09 (1979). 42. 482 Pa. at 475, 394 A.2d at 420. For a discussion of the law of child custody in Pennsylvania, see generally Bertin & Klein, Pennsylvania's Develop- ing Child Custody Laaw, 25 VILL. L. REv. 752 (1980). 43. 482 Pa. at 475, 394 A.2d at 420. 44. Id., 394 A.2d at 420-21.

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tutional right of privacy and, alternatively, that such information is 45 privileged under the Pennsylvania physician-patient privilege statute. The court disposed of the statutory privilege question by determining that records made as a result of psychotherapeutic examinations do not "necessarily" contain communications from the patient and knowledge that such a patient received psychotherapeutic treatment does not tend to blacken the patient's reputation. 4 Recognizing the existence of the constitutional right of privacy,47 the court next considered whether disclosure of the records was constitutionally prohibited. 48 The court determined that, because of the intimate nature of the psychotherapeutic process49 and the patient's expectation that matters revealed to the psychotherapist would remain confidential, 50

45. Id. at 475-77, 394 A.2d at 421. Initially, the representative of the hospital, Dr. Roth, refused to release the records without the patient's consent. Id. at 475, 394 A.2d at 421. Dr. Roth was adjudged in contempt of court and this appeal followed. Id. at 475-76, 394 A.2d at 421. 46. Id. at 480, 394 A.2d at 423. 47. Id. at 484, 394 A.2d at 425. The court stated that the right emanates both from the Bill of Rights of the United States Constitution as well as from the Pennsylvania Constitution. Id. Article I, § I of the Pennsylvania Consti- tution provides: "All men ...have certain inherent and indefeasible rights, among which are those ... of acquiring, possessing and protecting property and reputation." PA. CONST. art. I, § 1. 48. 482 Pa. at 481-86, 394 A.2d at 423-26. 49. Id. at 485, 894 A.2d at 425. The court observed that the psychotherapeutic process is such that the patient is required to disclose his emotions, fears and fantasies in order for the process to be beneficial. Id. at 485, 394 A.2d at 425-26. 50. Id. at 485, 894 A.2d at 426. The court noted that a patient bares his "entire self" and "rightfully expects" that such matters will remain exclusively between the patient and the psychotherapist. Id. The court also distinguished information revealed in the context of a psychotherapist-patient relationship from information revealed in a doctor- patient relationship, and indicated that greater constitutional protection would be afforded in the former situation. Id. at 484, 394 A.2d at 425. The court stated that the "individual's interest in preventing the disclosure of inforrna- tion revealed in the context of a psychotherapist-patient relationship has deeper roots than the Pennsylvania doctor-patient privilege statute, and that the patient's right to prevent disclosure of such information is constitutionally based." Id. The distinction between the psychotherapist-patient relationship and the doctor-patient relationship is due largely to the facts that: 1) there is a special need to maintain confidentiality in the former due to the intimate communications involved between the psychotherapist and the patient; and 2) it would be difficult, if not impossible, for a psychotherapist to function without being able to assure his patients of confidentiality and privacy in his communications. United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1043 (E.D.N.Y. 1976), aff'd mem., 556 F.2d 556 (2d Cir. 1977). See Advisory Committee's Notes to Federal Rules of Evidence Proposed Rule 504, 56 F.R.D. 183, 242 (1972). In- deed, the psychotherapist-patient relationship has been found to be deserving of protection for reasons similar to the protection granted the priest-penitent or lawyer-client relationship. Id. See generally 8 J. WIGMORE, supra note 24, § 2285, at 527. For a discussion of the physician-patient relationship, see note 24 supra. For cases dealing with a patient-litigant exception to the psycho-

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the constitutional right of privacy protected the information sought and prevented disclosure.51 Subsequently in Robinson v. Magovern,5 2 the United States District Court for the Western District of Pennsylvania was urged to adopt the holding of In re B and extend constitutional protection to the context 3 of the physician-patient relationship. The court declined to do so 54 and instead stated that the constitutional right of privacy is not absolute but qualified, and is "to be balanced against weighty

therapist-patient privilege, see Caesar v. Mountanos, 542 F.2d 1064 (9th Cir. 1976), cert. denied, 430 U.S. 954 (1977); In re Lifschutz, 2 Cal. 3d 415, 467 P.2d 557, 85 Cal. Rptr. 829 (1970). 51. 482 Pa. at 486, 394 A.2d at 426. As a result of the In re B decision, a "novel discovery problem" was created in that the confidentiality of the psychotherapist-patient relation was placed in the "realm of constitutionally protected interests." Miller v. Colonial Refrigerated Transp. Inc., 81 F.R.D. 741, 742 (M.D. Pa. 1979). In Miller, the plaintiff sought damages for emotional and mental injuries arising out of a traffic accident with an employee of the defendant and then sought to assert the psychiatrist-patient privilege to block the defendant's at- tempt to take discovery concerning the plaintiff's psychiatric treatment. Id. at 742-43. In denying the privilege, the court noted that In re B was not a majority decision and further distinguished the factual situation presented there, in which the patient was simply an interested third party, from Miller where the patient was directly raising a claim. Id. at 745. The Miller court determined that, even if a constitutionally protected privilege can be said to exist with respect to psychotherapist-patient communications, it is not absolute. Id. at 747. The court concluded that the state interests in seeing that "truth is ascertained" and that legal proceedings are conducted fairly, "justify a patient- litigant exception to confidentiality .... ."Id. 52. 83 F.R.D. 79 (W.D. Pa. 1979). 53. Id. at 90-91. Dr. John N. Robinson had brought an antitrust action against several local hospitals when they refused to permit him to perform open heart surgery. Id. at 89. In order to meet his burden of establishing that there was a monopoly in the market of open heart surgery, he subpoenaed records of five non-party hospitals where open heart surgery was performed. Id. The subpoena sought production of documents indicating the total number of open heart operations performed in a given year, the zip code only of the patient involved, the procedure performed, and the physicians involved. Id. One of the subpoenaed hospitals objected, claiming that since compliance with the subpoena would require the disclosure of confidential information, it was an invasion of the patients' constitutional right of privacy. Id. at 90. In addi- tion, the hospital contended that the information sought by the subpoena was privileged under the Pennsylvania physician-patient privilege statute. Id. See note 58 infra. For a discussion of the physician-patient privilege, see notes 59- 62 and accompanying text infra. The Robinson court dismissed the claim that the information sought was statutorily privileged because it did not contain communications which would tend to blacken a patient's character. 83 F.R.D. at 90. 54. 83 F.R.D. at 91. Observing that In re B does not indicate whether its holding is limited to psychotherapist-patient relationships or is applicable to doctor-patient relationships generally, the Robinson court contrasted the unique, highly personal nature of disclosures made in a psychotherapist-patient relationship against those disclosures made in a doctor-patient relationship, and implied that the psychotherapist-patient relationship involves a greater expectation of privacy. Id.

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competing private and state interests."55 Citing Whalen, the court held that even assuming that the patients had valid privacy interests at stake, those interests were adequately protected. 56 The court concluded by indicating that where the "intrusion into the right of privacy is minimal, and the need for the information is great," a subpoena for 57 patient records will be allowed. In contrast to the constitutional protection of medical data, which may be overcome by various state interests, disclosure of medical information falling within the requirements of Pennsylvania's physician-

55. Id. 56. 83 F.R.D. at 91-92. The court determined that there was only a "minimal" privacy invasion as the "anonymity of the patients concerned is preserved, and the requested information will be released under a confidentiality order." Id. at 92. For a discussion of Whalen, see notes 17-23 and accompanying text supra. See also Lora v. Board of Educ., 74 F.R.D. 565 (E.D.N.Y. 1977). In Lora, the court was confronted with a pretrial motion to compel production of diagnostic and referral files of children who were not parties to an action challenging a school district's program for placement of handicapped children. Id. at 567-68. Recognizing that the right to privacy and the psychiatrist-patient privilege are not absolute and must be "balanced against other important rights and needs," the Lora court determined that the childrens' rights must yield as "[t]he value of a just determination of the facts in this litigation outweighs any speculative costs of disclosure." Id. at 567. The Lora court placed special emphasis on the fact that the children's identities would not be disclosed, and that a protective order would be fashioned. Id. at 580, 586-87. "Most persons protest not the mere disclosure of private embarrassing or damaging information, but rather the concomitant disclosure of identifying data." Id. at 580, citing Doe v. McMillan, 412 U.S. 306 (1973) (parents challenged the dissemina- tion of a congressional report because it identified their children in derogatory contexts), The Lora court fashioned a four part test for determining whether disclosure would unjustifiably interfere with privacy expectations: First, is the identification of the individuals required for effective use of the data? Second, is the invasion of privacy and risk of psycho- logical harm being limited to the narrowest possible extent? Third, will the data be supplied only to qualified personnel under strict con- trols over confidentiality? Fourth, is the data necessary or simply desirable? 74 F.R.D. at 579. 57. 83 F.R.D. at 92. The United States District Court for the Eastern District of Pennsylvania has also recognized the constitutional right of privacy. See Shuman v. City of Philadelphia, 470 F. Supp. 449, 457 (E.D. Pa. 1979). In Shuman, the court was confronted with a challenge to a Philadelphia Police Department policy of requiring that an officer answer, at the risk of losing his job, questions concerning his personal life. Id. The interest asserted by the plaintiffs was the individual interest in avoiding disclosure of personal matters. Id. See text accompanying notes 17-23 supra. The court applied a balancing test, stating: "Absent a strong state interest justifying disclosure of certain types of personal information, such information is protected from compelled disclosure." 470 F. Supp. at 457. The court went on to state that compelled disclosure in and of itself may be an invasion of the zone of privacy. Id. at 458. In view of the fact that the officer could be questioned about personal matters regardless of the possible connection of those activities with the officer's on-the-job performance, the court concluded that such a policy was unconstitutional. Id. at 458-59.

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patient privilege statute58 ordinarily is absolutely barred.59 In order to fall within the privilege, the information sought to be protected must be a communication from the patient to the physician,6 0 during the course of the physician-patient relationship, which tends to "blacken" the patient's character. 61 Thus, in Pennsylvania, the constitutional right of privacy in medical information is usually invoked in those cases in which the information would not otherwise be privileged under 62 the physician-patient privilege statute. Against this background, the Pennsylvania Supreme Court began its analysis in Allegheny Grand Jury with a discussion of whether disclosure of the tissue reports was prohibited by the statutory physician- patient privilege.6 3 Since the tissue reports did not reveal communica-

58. 42 PA. CONS. STAT. ANN. § 5929 (Purdon 1980). The physician-patient privilege statute provides: No physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries. Id. 59. Id. See notes 60-62 and accompanying text infra. 60. Phillips' Estate, 295 Pa. 349, 145 A. 437 (1929). The Pennsylvania doctor-patient privilege statute applies only to patient communications and not to information acquired by physical examination. Panko v. Consolidated Mut. Ins. Co., 423 F.2d 41, 44 n.5 (3d Cir. 1970). See also Skruch v. Metropolitan Life Ins. Co., 284 Pa. 299, 131 A. 186 (1925) (privilege applies only to communications that patient was suffering from a loathsome disease); Massich v. Keystone Coal & Coke Co., 137 Pa. Super. Ct. 541, 10 A.2d 98 (1940) (statutory privilege does not apply to facts learned from physician's examination of the patient). 61. Woods v. National Life & Accident Ins. Co., 347 F.2d 760 (3d Cir. 1965); Soltaniuk v. Metropolitan Life Ins. Co., 133 Pa. Super. Ct. 139, 2 A.2d 501 (1938); Marks' Appeal, 121 Pa. Super. Ct. 181, 183 A. 432 (1936). In examining whether a communication tends to blacken a patient's character, it has been determined that information that a person has undergone psychotherapeutic treatment was not information which tended to blacken character of patient. In re B, 482 Pa. 471, 394 A.2d 419 (1978). See also Commonwealth ex rel. Platt v. Platt, 266 Pa. Super. Ct. 276, 404 A.2d 410 (1979) (although testimony about psychiatric treatment involved communications from a patient, such information did not tend to blacken the patient's character). A communication revealing that a patient suffered from chronic alcoholism was also found not to be information which tended to blacken the character of the patient. Soltaniuk v. Metropolitan Life Ins. Co., 133 Pa. Super. Ct. 139, 2 A.2d 501 (1938). The revealing of identifying data, such as a name or address, is not a communication tending to blacken a patient's character. Sweeney v. Green, 116 Pa. Super. Ct. 190, 176 A. 849 (1935). 62. See, e.g., Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979); notes 52-57 and accompanying text supra. See also In re B, 482 Pa. 471, 394 A.2d 419 (1978); notes 41-51 and accompanying text supra. 63. - Pa. at -, 415 A.2d at 76-77.

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65 tions 64 tending to blacken the character of the patients, however, the court concluded that the statutory privilege was not applicable.6 Chief Justice Eagen next addressed the issue of whether the disclosure of medical information implicated the patients' constitutional rights of privacy. 67 Such rights, the court observed, are guaranteed by 69 both the state 68 and federal constitutions. On the facts before it, the court considered the patients' privacy interest to be implicated by the possible disclosure of personal matters contained in the hospital records. 70 The court noted that "under certain circumstances" disclosure of patient confidences or release of medical data concerning the

64. - Pa. at -, 415 A.2d at 77. Recognizing the distinction made between information obtained as a result of communications and that obtained by physical examinations, the court determined that, while the tissue reports contained some information obtained through communication, the information sought by the subpoena was not a direct result of communications by the patient. Id. For a discussion of the relevance of the source of the information and the element of the statutory physician-patient privilege, see notes 1-5 & 60-61 and accompanying text supra. 65. - Pa. at -, 415 A.2d at 77. Chief Justice Eagen determined that the statutory privilege did not protect the subpoenaed reports because, even assuming the existence of a communication, "such communications would in no way tend to blacken the character of a patient." Id. For a discussion of the ele- ments of the statutory physician-patient privilege, see notes 58-62 and accompanying text supra. 66. - Pa. at -, 415 A.2d at 76-77. The court noted that the purpose of the doctor-patient privilege is to encourage the patient to be frank and to disclose all information bearing on one's illness so that the physician may render effective treatment. Id. at -, 415 A.2d at 77. In keeping with this policy, the court indicated that the scope of the privilege has been narrowed to include only information communicated to the physician by his patient. Id. The court determined, however, that although the privilege is ordinarily to be asserted by the patient, because the hospital owes a duty of confidentiality to its patients, the hospital could assert the privilege on their behalf. - Pa. at -, 415 A.2d at 76. See 28 PA. CODE § 115.27 (1980); Patient's Bill of Rights, 28 PA. CODE §§ 103.21-103.24 (1980). 67. - Pa. at -, 415 A.2d at 77. See Whalen v. Roe, 429 U.S. at 599-600 (constitutional protection afforded to the interest in avoiding disclosure of personal matters and to the interest in making important decisions). For a discussion of the constitutional right of privacy, see notes 12-16 and accompanying text supra. Relying on In re B, the hospital administrator asserted that constitutional protection should be afforded to the hospital records. - Pa. at -, 415 A.2d at 77. 68. - Pa. at -, 415 A.2d at 77. For the text of the relevant provision of the Pennsylvania Constitution, see note 47 supra. 69. - Pa. at -, 415 A.2d at 77. For a discussion of the contexts in which a right to privacy has been found to exist under the United States Constitution, see note 12 supra. 70. - Pa. at -, 415 A.2d at 77, citing Whalen v. Roe, 429 U.S. at 599-600. Chief Justice Eagen stated that "(w]hile its sources and limits may be disputed, there can be no doubt that the United States Constitution guarantees a right to privacy." - Pa. at -, 415 A.2d at 77. The court further noted that another constitutionally protected privacy interest is "the right of the individual to be free of unreasonable government surveillance and intrusion." Id. at - n.9, 415 A.2d at 77 n.9. See also note 19 supra.

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individual patient could violate a patient's constitutional right not to have personal matters revealed. 71 Nevertheless, the court held that such circumstances did not exist in the present case. 72 The court reasoned that the terms of the Grand Jury Act 73 and the supervision exercised by the judge presiding over the grand jury proceedings 74 offered "considerable protection" to an individual patient's right of privacy.7 5 Moreover, the court determined that in the event the medical information was needed at trial, "appropriate means" of protecting the patients' confidentiality could be fashioned. 70 Finally, in affirming the supervising judge's civil contempt order,77 the court noted that the Common- wealth had shown that the information sought was relevant to its investigation 78 and stated that, although a limited invasion of privacy

71. - Pa. at -, 415 A.2d at 77-78. The court did not indicate the circumstances under which constitutional protection would be afforded. Id. 72. Id. at -, 415 A.2d at 78. 73. Id. The court noted that those involved in such proceedings are sworn to secrecy and will be held in contempt of court if they violate this oath. Id. Section 272(b) of the Investigating Grand Jury Act provides that matters oc- curring before the grand jury, other than its deliberations and votes, may be disclosed to the Commonwealth's attorneys in order for them to perform their duties. 19 PA. CONS. STAT. ANN. § 272(b) (Purdon Supp. 1980-1981). With the approval of the supervising judge, the Commonwealth's attorneys may further disclose such matters to those enforcement agencies investigating the crimes. Id. A juror, attorney, interpreter, stenographer, operator of a record- ing device, or typist, however, may disclose such matters only when directed by the court; are each sworn to secrecy; and will "be held in contempt of court if they reveal any information which they are sworn to keep secret." Id. Section 275 provides, however, that an investigating grand jury report may be submitted to the supervising judge, who shall accept and file this report as a public record with the relevant court of common pleas, if the report is factually based on an authorized investigation. Id. § 275. See id. §§ 265-275; note 1 supra. The role of the grand jury is chiefly to inquire into the existence of "possible criminal conduct and to return only well-founded indictments." Branz- burg v. Hayes, 408 U.S. 665, 688 (1972). The powers of the grand jury, however, are not unlimited and are subject to judicial supervision. Id. See also 8 J. WIGMORE, supra note 24, § 2192, at 73-74. See generally Comment, The Rights Of A Witness Before The Grand Jury, 43 Mo. L. REv. 714, 714-19 (1978). 74. - Pa. at -, 415 A.2d at 78. Concerning the protection afforded to the patients' records, Chief Justice Eagen noted that "[t]he supervising judge has the continuing responsibility to oversee grand jury proceedings, a responsibility which includes insuring the solemn oath of secrecy is observed by all participants." Id. at -, 415 A.2d at 78. For a discussion of the grand jury system, see notes 1 & 73 supra. 75. - Pa. at -, 415 A.2d at 78. The court also considered the factual nature of the data involved and that the grand jury required the information for an investigation unrelated to the patients themselves, and found neither the United States Constitution nor the Pennsylvania Constitution to be "offended." Id. 76. Id. at -, 415 A.2d at 78. 77. Id. 78. Id. The court stated that it had carefully examined the affidavit submitted by the Commonwealth. Id.

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would occur as a result of the grand jury subpoena for hospital medical records, such an invasion was "justified." 79 In a concurring opinion, Justice Roberts expressed confidence in the ability of a supervising court to protect patients against any prej- udicial disclosure.8 0 Considering the grand jury's oath of secrecy and constant court supervision, Justice Roberts found that the information, and thus the patients' privacy, was at least as secure with the grand jury as with the hospital or outside laboratories.8 ' In a separate opinion, Justice Nix, while concurring in the result reached by the court, 2 indicated that he was upset by the majority's "lack of appreciation of the patients' interest in the proposed disclosure of this information." 8 Justice Nix criticized the majority opinion as reflecting too narrow a view of the adverse consequences to patients resulting from a disclosure of medical information.8 4 Justice Nix acknowledged the individual's interest in avoiding disclosure of personal matters 85 and suggested that even when disclosure is sought in connection with a criminal investigation unrelated to the patients, this interest should be given deference.8 6 At the very least, Justice Nix concluded, patients should be given notice and an opportunity to be heard.8 7 Justice Larsen, in a dissenting opinion, strongly criticized the majority for failing to recognize that, in and of itself, the act of disclosing information of this nature to another, regardless of the re- cipient's promise not to disclose further, amounts to a breach of the 79. Id. at - n.1l, 415 A.2d at 78 n.1l. 80. - Pa. at -, 415 A.2d at 78-79 (Roberts, J., concurring). Justice Roberts noted the hospital practice of preserving patient confidentiality through the use of numerical identification. Id. at -, 415 A.2d at 79 (Roberts, J., concurring). 81. Id. at -, 415 A.2d at 79 (Roberts, J., concurring). Justice Roberts noted that, unlike the grand jury, hospital personnel or outside laboratories are not so sworn. Id. 82. Id. at -, 415 A.2d at 79 (Nix, J., concurring in the result). Justice Nix concurred in the result reached because of his belief that the hospital administrator was not justified in refusing to comply with a court order. Id. According to Justice Nix, the hospital discharged any obligation owed to the patients by asserting the physician-patient privilege. Id. 83. Id. Justice Nix further criticized the majority's conclusion that intervenor status would probably not have been granted to the patients involved because the information sought related to an investigation of third parties. Id. The majority had noted that "[w]ere a patient the target of a grand jury investigation whose medical records were sought, he might well be able to establish a sufficient interest to intervene in the proceedings to protect his rights." Id. at - n.5, 415 A.2d at 76 n.5. 84. - Pa. at -, 415 A.2d at 79 (Nix, J., concurring in the result). 85. Id. 86. Id. Justice Nix also indicated that intervenor status should have been granted to the patients. Id. See note 83 supra. 87. Id.

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right of privacy.8 8 Furthermore, according to Justice Larsen, the disclosure was unwarranted since the information desired by the grand jury could have been obtained by other means without detriment to the patients' privacy rights.8 9 Justice Flaherty, in a separate dissenting opinion, disputed the majority's conclusion that the terms of the Grand Jury Act and supervision by the presiding judge are sufficient to protect the patients' privacy interests,90 finding this protection "illusory" 91 and contending that the grand jury's oath offers "little, and at best insecure, protection to individuals." 92 Justice Flaherty further criticized the majority for failing to devise "appropriate means" for safeguarding the subpoenaed 98 information at both the grand jury and trial levels. Upon review of the Pennsylvania Supreme Court's reasoning in this case, it is submitted that the court's failure to explain adequately the basis of its conclusion that there was no constitutional violation 94 may 88. Id. at -, 415 A.2d at 79 (Larsen, J., dissenting). Justice Larsen main- tained that the violation of an individual's right to privacy is the actual knowledge of private and personal matters by another - "not that the knowledge may or may not continue on a course of travel to yet another eager ear." Id. Moreover, Justice Larsen believed that "human nature ... requires that secrets be communicated." Id. Justice Larsen further stated: Our society encourages those who are ill, diseased and plagued with any of the multitude of organisms which can inflict themselves upon humans to seek out treatment. To this end, citizens with anything from flu to venereal disease to cancer must of necessity reveal these private and sensitive matters to persons in the medical and scientific fields. A right of privacy protects our citizens from having such matters disclosed to others. Id. (emphasis by Justice Larsen). 89. Id. Justice Larsen did not specify the "other means" by which information could have been obtained by the grand jury. Id. The majority, however, although indicating that P.P. & T. claimed that it did not possess its own copies of the tissue reports, stated that the hospital administrator had previously delivered, except for the actual tissue reports, much of the information sought. Id. at - & n.2, 415 A.2d at 75 & n.2. See notes 3 & 5 supra. 90. - Pa. at -, 415 A.2d at 79-80 (Flaherty, J., dissenting). For a discussion of the protections viewed by the majority as available from the Grand Jury Act, see notes 73-75 and accompanying text supra. Justice Flaherty argued that the two "circumstances" indicated by the majority - the fact that the grand jury is sworn to secrecy and that "appropriate means" would be fashioned if the information was used as evidence at trial - are unsupportable both in reason and experience. - Pa. at -, 415 A.2d at 80 (Flaherty, J., dissenting). 91. - Pa. at -, 415 A.2d at 80 (Flaherty, J., dissenting). 92. Id. In Justice Flaherty's view, "experience" demonstrates the extent of protection. Id. 93. Id. According to Justice Flaherty, the majority's contention that "appropriate means" would be fashioned at trial "belies" the "fallacy" of the majority's reasoning. Id. In Justice Flaherty's view, if such means could be fashioned at the trial level, then the same means could certainly be fashioned at the grand jury level. Id. 94. See - Pa. at -, 415 A.2d at 78. The majority, while emphasizing the nature of the grand jury process, failed to indicate whether it was applying the Whalen balancing approach or was relying upon some other rationale. See notes 99 & 103-09 and accompanying text infra.

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cause confusion on the issue of the circumstances under which an individual's privacy interest in medical records may be overcome. After concluding that the information sought was not protected by Penn- sylvania's physician-patient privilege,95 the court appropriately acknowledged that, while the sources and limits of the constitutional right of privacy may be disputed, the existence of such right is beyond per- adventure.96 Specifically, the court recognized a constitutional right not to have personal matters disclosed 97 and found that the disclosure of the hospital records implicated this right.98 Nevertheless, the court concluded that disclosure of the information in these hospital records was not an unconstitutional invasion of the patients' privacy.99 In support of this conclusion, the court relied on 1) the factual nature of the information sought, 2) the purpose for which it was sought, and 3) the nature of the grand jury system. 100 On the final point, the court observed that jurors are sworn to secrecy and are under the continuous direction of a supervising judge who may punish as contempt of court any disclosure of secret information. 101 This, the court reasoned, provided "considerable protection" of patients' privacy rights.102 95. See - Pa. at -, 415 A.2d at 77; notes 63-66 and accompanying text supra. 96. See - Pa. at -, 415 A.2d at 77; notes 68-69 and accompanying text supra. 97. - Pa. at -, 415 A.2d at 77. 98. See - Pa. at -, 415 A.2d at 77-78; notes 70-71 and accompanying text supra. For a general discussion of the constitutional right of privacy in avoiding disclosure of personal information, see notes 13-16 and accompanying text supra. 99. See - Pa. at -, 415 A.2d at 77-78; notes 72-79 and accompanying text supra. The majority stated that a privacy interest was implicated, but failed to grant relief because the "circumstances" were such as not to pose a "serious threat" to a patient's privacy. - Pa. at -, 415 A.2d at 77-78. Yet the majority never defined what "circumstances" would be a "serious threat" to privacy. Id. 100. See - Pa. at -, 415 A.2d at 78. 101. - Pa. at -, 415 A.2d at 78. See notes 73-75 and accompanying text supra. See also Schachter v. Whalen, 581 F.2d 35 (2d Cir. 1978) (per curiam) (coding system protecting patients' identities); notes 25-30 and accompanying text supra. 102. See - Pa. at -, 415 A.2d at 78; notes 73-75 and accompanying text supra. Justice Flaherty, in his dissenting opinion, disagreed with this conclusion, contending that the grand jury system offers little protection to one's constitutional right of privacy. - Pa. at -, 415 A.2d at 80 (Flaherty, J., dissenting). See notes 90-92 and accompanying text supra. Justice Larsen, in a separate dissenting opinion, was of the view that "human nature . . . requires that secrets be communicated." - Pa. at -, 415 A.2d at 79 (Larsen, J., dissenting). In a concurring opinion, Justice Roberts, although agreeing with the result reached by the majority, seemed to rely more on the supervision aspect of the statute and of the majority opinion, seemingly indicating his skepticism of the value of the oaths of secrecy. Id. at -, 415 A.2d at 79 (Roberts, J., concurring). See also E. I. duPont deNemours 8CCo. v. Finklea, 442 F. Supp. 821 (S.D. W.Va. 1977) (assurances that information would be kept confidential); notes 31-33 and accompanying text supra.

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While this rationale seems to be based at least in part upon a view that disclosure of medical information to the grand jury resulted in no invasion of the patients' privacy rights,103 the court elsewhere states that the "invasion of privacy ... [is] justified under the circumstances," 104 thus implying a balancing approach. 10 The latter rationale, which was embraced by the Whalen Court, 0 ' weighs the harm to the individual's privacy interest against the need for disclosure of the information. 107 Where the need for the information is great and only slight harm would be caused to the individual's privacy interest, disclosure is permitted.' 0 s On the other hand, the court's emphasis on the protection afforded patients' privacy in the grand jury context seems to allow disclosure without any showing of a compelling state interest. 109 It is submitted that this lack of clarity is exacerbated by the majority's failure to respond to points raised by the separate concurring and dissenting opinions. The majority did not respond to Justice Larsen's contention that any disclosure is an invasion of privacy. 1 0 Instead, the majority seems to indicate that while disclosure of the medical records at trial would be an unconstitutional invasion of privacy absent the fashioning of "appropriate means" to protect the patients' identities,"' disclosure of the same information to the grand 103. - Pa. at -, 415 A.2d at 78. The majority acknowledged that there could be other circumstances when such disclosure would amount to a "serious threat" to one's constitutional right of privacy, but found that those circumstances were not present. Id. 104. Id. at - n.11, 415 A.2d at 78 n.11. Compare the result in the present case with Whalen v. Roe, 429 U.S. at 601-02 (sufficient assurances found within state statutory scheme that private information would not be disclosed). For a description of the factual situation involved in Whalen, see notes 17-23 and accompanying text supra. 105. - Pa. at - n.11, 415 A.2d at 78 n.11. Although the court did not expressly state that this was the rationale for its decision, it noted that the Commonwealth had made a proper showing of relevance by affidavit and the information sought did not appear to have been sought for another purpose unrelated to the grand jury investigation. Id. at -, 415 A.2d at 78. 106. For a discussion of Whalen, see notes 17-23 and accompanying text supra. 107. See notes 16 & 20-22 and accompanying text supra. 108. See id. In Whalen, the disclosure of information was found to be a reasonable exercise of the state's police power. See note 20 and accompanying text supra. 109. The Allegheny Grand Jury court, while indicating that the information sought was relevant to the grand jury investigation, did not specify a state interest in having the patients' identities disclosed to the grand jury. - Pa. at -, 415 A.2d at 78. 110. See id. at -, 415 A.2d at 79 (Larsen, J., dissenting); note 88 and accompanying text supra. 111. - Pa. at -, 415 A.2d at 78; note 76 supra. Chief Justice Eagen did not explain what means would be employed to protect the individual patient's right of privacy in the event medical information was needed as evidence at trial. See id. The court also did not indicate why an appropriate means of

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jury is not such an invasion. 112 Although the grand jury system itself may protect the patients' privacy interests, 113 it is submitted that the majority overlooked the possibility that certain grand jury documents may become a matter of public record. 114 Thus, the majority's manifest concern that "appropriate means" be fashioned at the trial level because of a trial's public nature seems, as Justice Flaherty apparently recognized, equally relevant at the grand jury level.11 Although the majority did not expressly address Justice Larsen's contention that the information sought was available without disclosure of the patients' personal medical data,"16 it is submitted that the court may have been influenced by the fact that most, if not all, of the information desired by the grand jury had already been disclosed as a

protecting the patients' confidentiality could be fashioned for trial, but not for the grand jury level. Id. Although the court stated that "appropriate means" could be employed to safeguard patients' identities at trial, the court failed to acknowledge that under Pennsylvania law, a grand jury may prepare a written report of its proceedings which would be available for public inspection. See 19 PA. CONS. STAT. ANN. § 275 (Purdon Supp. 1980-1981). See also note 73 supra. See also Falcon v. Alaska Public Offices Comm'n, 570 P.2d 469 (Alaska 1977) (appropriate safeguards needed to protect patients' identities); notes 34- 40 and accompanying text supra. 112. - Pa. at -, 415 A.2d at 78. The anomaly in this view is obvious: under the majority view, disclosure to 30 grand jurors and those other persons involved in grand jury proceedings is not an unconstitutional invasion, whereas disclosure of the same information at a trial is an unconstitutional violation because of the added factor that trials are open to the "public" generally. See generally 19 PA. CONS. STAT. ANN. § 269 (Purdon Supp. 1980-1981) (grand jury composed of 23 members and seven alternates). The majority fails to explain this anomoly and fails to answer Justice Larsen's contention that the breach of the constitutional right of privacy occurs when that information is disclosed to another person. - Pa. at -, 415 A.2d at 79 (Larsen, J., dissenting). Under Justice Larsen's approach, it is irrelevant whether the information is disclosed to a body of persons sworn to secrecy or to the public. Id. 113. Justice Flaherty contended that the fact the grand jury is supervised and sworn to secrecy offers little protection. - Pa. at -, 415 A.2d at 80 (Flaherty, J., dissenting). It is submitted, however, that his contention fails to take into account the Supreme Court's admonition in Whalen that the "remote possibility" that judicial supervision "will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program." Whalen v. Roe, 429 U.S. at 601-02. 114. See 19 PA. CONS. STAT. ANN. § 275(a) (Purdon Supp. 1980-1981) (grand jury by an affirmative majority vote may issue an investigating grand jury report to supervising judge); Id. § 275(b) (supervising judge shall file such report as a public record if based upon facts received in the course of grand jury investigation); note 73 supra. 115. Justice Flaherty indicated that the same "appropriate means" could be fashioned at the grand jury level. - Pa. at -, 415 A.2d at 80 (Flaherty, J., dissenting). See note 93 and accompanying text supra. See also notes 111-14 and accompanying text supra. 116. See - Pa. at -, 415 A.2d at 79 (Larsen, J., dissenting); notes 88-89 and accompanying text supra. See also notes 3 & 5 supra.

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result of the first subpoena. 117 Given the fact that strictly non-medical information was disclosed pursuant to the first subpoena,1 s however, it is submitted that such disclosure should not amount to a waiver of the patients' right to avoid disclosure of the medical information sought by the second subpoena, i.e., the actual tissue reports themselves."19 Regardless of which factor influenced the majority-that "appropriate means" of protecting patient confidentiality would be fashioned at trial or that most of the information sought had already been revealed-it is submitted that the disclosure causes detriment to the patients without any counterbalancing state interest. 120 If, as Justice Larsen contended, the information desired by the grand jury could have been obtained by other means,' 2 ' then, under the Whalen approach, the state's interest in disclosure would not have been sufficient 122 to justify the exposure of the patients' personal medical data. In evaluating the impact of this decision, the most important fact to bear in mind is that the court has recognized, albeit indirectly and with less than crystal clarity, that patients have a constitutional right of privacy in their hospital records. 123 Furthermore, this right is broader than the statutory physician-patient privilege in that here unprivileged matters were found to be within the area of constitutional concern. 124 Nevertheless, since the court saw the invasion of privacy justified on these facts, 125 questions as to the scope of that right abound. Because three justices took issue with the majority's lack of appreciation of the patients' privacy interest, 26 it is also likely that the decision will be limited to its unique factual situation and not be expanded to include non-grand jury situations. Moreover, it is possible to construct a hypothetical majority, comprised of Justices Roberts, Nix, Larsen and Flaherty, which supports limiting this case to the grand

117. - Pa. at -, 415 A.2d at 75. Under the first subpoena, the hospital administrator delivered correspondence, cancelled checks, invoices, and itemized billings for tissue samples sent to P.P. & T. Id. 118. Id. The information disclosed pursuant to the first subpoena apparently did not include the medical records of any individual patient. Id. 119. Id. It is suggested that the information contained in the tissue reports was of a different and more personal nature than the strictly non-medical and incidental information revealed. Id. 120. Under the Whalen approach, such circumstances would bar disclosure. See notes 18 & 20 and accompanying text supra. 121. See - Pa. at -, 415 A.2d at 79 (Larsen, J., dissenting). 122. See notes 18, 20 & 106-08 and accompanying text supra. 123. See - Pa. at - & n.ll, 415 A.2d at 78 & n.ll; notes 68-71 9: 104 and accompanying text supra. 124. See notes 64-66 & 70 and accompanying text supra. 125. See - Pa. at - n.l, 415 A.2d at 78 n.l1; notes 72-79 and accompanying text supra. 126. See - Pa. at -, 415 A.2d at 79 (Nix, I.,concurring); id. at -, 415 A.2d at 79 (Larsen, J., dissenting); id. at -, 415 A.2d at 79-80 (Flaherty, J., dissenting).

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jury context. 127 Although Justice Roberts' membership in such a majority is questionable,1 28 it is suggested that the hypothetical majority might be apt to prohibit the disclosure of personal information in a non-grand jury setting. Finally, it is suggested that the court's lack of clarity as to whether its rationale was based on the Whalen balancing approach or on the view that disclosure would not threaten patients' constitutional rights will confuse future courts as to the standard to be applied in deciding similar cases in the future. Although the majority would seemingly allow disclosure if the requirements of either rationale were met, it would apparently find disclosure at trial to be an unconstitutional invasion, absent "appropriate means" protecting patient confidential- 1 2 9 ity. What is clear from this confusion is that Pennsylvania courts will be lacking in guidance as to what constitutes sufficient justification of an invasion of privacy. Kathleen D. Yesenko

127. See note 126 supra. Justice Roberts was confident that patient confidentiality would be sufficiently protected in the event the information was needed at trial. - Pa. at -, 415 A.2d at 79 (Roberts, J., concurring). 128. Justice Roberts emphasized the fact that, in his view, the grand jury system provides "at least as great assurance of protection as does either" the hospital or outside laboratories handling the tissue samples. - Pa. at -, 415 A.2d at 79 (Roberts, J., concurring). 129. See notes 71-76 and accompanying text supra. See, e.g., Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979) (patient information released at trial pursuant to a confidentiality order); notes 52-57 and accompanying text supra.

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